The U.S. Court of Appeals for the Ninth Circuit dismissed as moot the NCAA's consolidated appeals challenging preliminary injunctions that had permitted two of Phoenix Partner and Collegiate & Professional Sports Practice Chair Gregg E. Clifton's clients to play college football during the 2025 season.
The Ninth Circuit's decision preserved lower court orders in favor of Mr. Clifton's clients, Cortez Braham and Tatuo Martinson. Mr. Clifton had filed two separate suits on behalf of Mr. Braham and Mr. Martinson prior to the 2025 college football season in Nevada Federal District Court, alleging that several of the NCAA's eligibility rules, including the "Five-Year Rule," violated the Sherman Antitrust Act. Both Mr. Braham and Mr. Martinson began their collegiate careers at junior colleges in 2019 before later transferring to Division I universities.
The NCAA's Five-Year Rule establishes that student-athletes are limited to four seasons of Division I competition, to be completed within a five-year "eligibility window" that begins to run when they first enroll full-time in any collegiate program. Mr. Braham and Mr. Martinson alleged, among other things, that the NCAA improperly counted their seasons of junior college competition against that five-year window when they technically do not possess jurisdiction over junior colleges since all junior colleges are prevented by the NCAA from having any formal membership affiliation with that organization.
Mr. Clifton, who was assisted by Reno Managing Partner Brandon Wright and Philadelphia Partner Conor Donze, secured preliminary injunctions in both separate actions on behalf of Mr. Braham and Mr. Martinson that permitted them to play during the 2025 season. Mr. Braham, a wide receiver, played his final season at the University of Memphis, while Mr. Martinson, a defensive lineman, played his last season at San Diego State University.
In its September 9 opinion, the Ninth Circuit declared that the NCAA's appeals of the lower court orders were moot because the preliminary injunctions had already expired and Mr. Braham's and Mr. Martinson's collegiate careers were over. Therefore, the court found, there is no "effective relief" available to the NCAA.
"Famously, in sports, 'it ain’t over ‘til it’s over.' But, in this case, it’s over," the appellate court's opinion said. "The game clock has run out on the 2025 college football season. With these appeals, the NCAA ‘s one last Hail Mary pass: asking us to reverse the preliminary injunctions granted these college football players that allowed them to play in the now complete 2025 season. Because these injunctions have already expired and these players’ collegiate careers are over, no effective relief can be granted to the NCAA."
The NCAA alternatively argued that the "mootness exception" for "controversies capable of repetition" should apply because more than 70 other student-athletes have filed similar lawsuits challenging the Five-Year Rule. The Ninth Circuit, rejected that argument in both cases and stated that the mootness exception does not apply merely because the NCAA may face similar suits in the future.
"To agree with the NCAA's position would turn the relevant capable-of-repetition doctrine on its head by taking the focus away from the parties to the action and the plaintiff's complained-of wrong, and instead making the specter of litigation by any nonparty against the defendant the wrong itself," the opinion said.
Mr. Clifton is chair of Lewis Brisbois’ Collegiate & Professional Sports Law practice and a vice chair of the Traditional Labor Law practice. He advises numerous professional franchises on general labor and employment issues, has served as lead counsel for several Major League Baseball teams in their salary arbitration matters, and has represented NCAA and NAIA collegiate clients. Additionally, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions as well as agent regulation and enforcement matters in professional and college sports.